Paxety Pages

As we get started, I'll say up front I don't read the Miami Herald print edition. I do get the emailed 5-minute Herald and read some of the stories (mostly about the Dolphins). I first heard of DeFede a couple of months ago when I read a blog post complaining about something he had written. I've never read one of his columns, so I have no opinion of him.

Florida, unlike most states, requires both parties to consent to the taping of a telephone conversation - here are the applicable excerpts:

 934.03  Interception and disclosure of wire, oral, or electronic communications prohibited.--

(1)  Except as otherwise specifically provided in this chapter, any person who:

(a)  Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

 shall be punished as provided in subsection (4).

(4)(a)  Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 934.41.

then there follows a long list of things that qualify as misdemeanors.

Then there's the part about recording:

To "[i]ntercept" a communication for purposes of the act is "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device."[4]

Notice it is the interception that is prohibited. But there is an important exception:

 934.03(3)(d)  It is lawful under ss. 934.03-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.

(I'd give you a link, but since I've downloaded the above, the server containing the Florida Statutes seems to have crashed.)

According to DeFede's own admission, he did not obtain Teele's consent. Thus, Jim DeFede broke the law.

Expectation of privacy

His defenders have thrown up a few defenses I consider red herrings. First, there's the argument that the statute does not apply except when there is a reasonable expectation of privacy. The current statute provides:

934.02  Definitions.--As used in this chapter:

(2)  "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

The argument is made that anytime a politician talks to a reporter, there is no reasonable expectation of privacy. I wouldn't agree with that, especially ion this case. DeFede admits he and Teele agreed the conversation was "off the record."

He didn't disclose

Some folks have argued that DeFere didn't disclose what was on the tape - so that it was really just like taking notes by hand. That's not what the law says. Notice it's interception that's prohibited.

Did he know/They all do it

I've seen some folks question whether DeFede knew about the statute. It's my understanding that he has worked for the Miami newspaper for years. I can't imagine he didn't know.

Other folks argue that news outlets encourage reporters to break the law all the time. None of the stations I worked for did - in fact most had training sessions in which lawyers or consultants were brought in just to be sure the news people knew what laws were applicable to them. I worked for one station that required a written test every quarter on legal subjects. News outlets don't encourage people to break laws. They know that if laws are broken, the station could be sued.

For confirmation, before I sat down to write, I talked to several other people who have worked in the news business in Florida. My view was that everyone who works in news in Florida is quickly told that it's illegal to record conversations without the permission of all parties. Everyone I talked to today agreed. I remember that when I moved back to Florida in 1992 to work for WJKS-TV,  on the first day, the news director gave me a printed set of rules, and he pointed out the non-taping clause to me.

When I worked as a newsroom manager at WAWS-TV and at WTEV-TV, I made it a point to tell all new employees about the unusual Florida law. I can't imagine that DeFede didn't know about the law. Besides, he says he told his editors what he had done. And he expected to be punished - just not fired.

 "I told them I was willing to accept a suspension and apologize both to the newsroom and our readers. Unfortunately, The Herald decided on the death penalty instead."

I'll ignore the death penalty remark.

Judith Miller

A lot of folks want to compare DeFede to Judy Miller who is sitting in a jail cell because she's in contempt of court. Her situation is entirely different. She was required to testify before a federal grand jury.  A lot of states, including Florida, have reporter shield laws. The federal government does not. have one. When Miller refused to testify, she was found in contempt of court.  Contempt of court is not a crime. She was jailed because courts have the power to enforce their orders. She could walk out of the jail cell today if she would testify - she freely chooses not to do so.  She has not been sentenced to a prison term - she's being held until she testifies - or until the grand jury goes out of session.

Why does the New York Times back Judy Miller when the Herald doesn't back DeFede? It seems to me clear that DeFede committed a crime while Miller has not. The Times long ago made a policy decision to protect reporters sources. It's following it's policy. (One I don't personally agree with).

It's been my experience that in Florida, the policy of news organizations is to prohibit illegal taping.

Yes, I have known at least one reporter fired from a TV station for secretly taping an interview.

DeFede says he was willing to accept a suspension. If he had been a long-time employee who had not caused trouble in the past, I, as a manager, might chose to suspend him. The Herald chose to fire him, and I don't disagree. Punishment is proper here. He committed a crime.

Donnah's take is here - The Conductor's here - George's here - Steve H.'s here. - Robert's is here and here.